Buffalo News

It’s not surprising that Governor Andrew Cuomo places the blame for Amazon’s decision not to proceed with a headquarters in Long Island City, Queens, squarely on the Democrats in the State Senate. Our uber-confident governor has never been one to admit to possible mistakes.

But the Buffalo News editorial board owes its readership a more nuanced assessment of the governor and his handling of development-related matters. Its February 17th editorial, “Senate Dems poison Amazon deal and hurt the rest of New York,” is a perfect example of the easy-on-Cuomo approach.

The recent opinion vilifies the State Senate for what the editorial board characterizes as “reckless conduct,” calling out its Majority Leader, Andrea Stewart-Cousins, for her “unfortunate leadership.” But no mention is made of the governor’s arrogant style and secretive decision-making process. Cuomo unnecessarily alienated legislative leaders, as well as the public, by failing to involve them in the formulation of the nearly $3 billion package of state and city tax breaks offered to Amazon.

The editorial board ironically suggests that the actions of Senate Democrats will adversely impact all of New York State by discouraging other companies from engaging in “a rigged game.” Such commentary, devoid of any mention of the blackeye the Empire State has suffered from the Buffalo Billion bid-rigging scandal, belongs in a Cuomo press release, not a regional newspaper’s editorial.

To simply opine that, “Western New York is better off for Tesla’s presence,” begs the question: Would Buffalo be worrying about Tesla and its Buffalo solar business if the Buffalo Billion plan had been skillfully and thoughtfully planned and implemented in the midst of Gov. Cuomo’s 2014 re-election campaign?

The facts reflect poorly on our governor.

The November 2013 plan for the RiverBend site envisioned – not the “silver bullet” of a million-square-foot single-purpose building – but seven smaller structures used by a variety of businesses. [See Model of original RiverBend plan Nov. 2013.]

The original “anchor tenants” touted by Cuomo for RiverBend were two long-forgotten California-based manufacturers, Solevo (solar panels) and Soraa (LED lighting).

The concept of a one-million-square-foot plant came, not from the Cuomo administration, but from SolarCity, a solar panel installation company owned by two cousins of Tesla’s Elon Musk. SolarCity announced plans in June 2014 to purchase Solevo.

A month before the September 2014 Democratic primary, lured by the image of the largest solar panel manufacturing facility outside of China, Gov. Cuomo embraced SolarCity’s massive plans for RiverBend. Overlooked was SolarCity’s almost $50 million second quarter loss.

An unplanned event brought Tesla to Buffalo. Elon Musk’s company purchased the bankrupt SolarCity in 2016.

Given this reality, the Buffalo News editorial board should be asking: With proper planning and public input, how else could the Cuomo administration have invested $750 million in Buffalo’s future, and how much better off might Western New York be today?

[A version of this post is published at The Public – click here – beneath the headline: “On the Ethics Code, It’s not the Sabres tickets, Folks…”]

The Buffalo News has expended substantial space and ink reporting and editorializing on the effort of Erie County’s elected officials to determine what is or isn’t a “nominal” gift that county officers and employees may accept without running afoul of his or her ethical obligations. The discussion arises in the midst of the county legislature’s unimpressive effort to rewrite the county’s Code of Ethics.

The focus of the public debate – by the newspaper and county legislators – has been on a rather mundane issue: Should a 200-level Sabres ticket be considered an allowable gift?

I. Elephant in the room?

According to the News editorial board, the “nominal gift” question and other complex ethical concerns could be appropriately resolved if county lawmakers consider the following question: “How best can we instill and protect the public’s confidence in government?” From my perspective, it would be more useful (and, more honest) if our county officials, the media, and Erie County residents asked the following question:

“What is more likely to improperly influence our county’s elected officials, a Sabres ticket (which, this season, virtually no one wants), or the generous political contributions the county executive, members of the county legislature, the district attorney, the sheriff, the county comptroller, and the county clerk pursue and receive each time they run for office?”

I have little doubt that an overwhelming majority of residents would perceive political contributions as the bigger threat to their confidence in government. To help place my suggested inquiry into a tangible context, I visited the website of NYS’s Board of Elections – at http://www.elections.ny.gov/contribandexpend.html – and retrieved information concerning the contributions various Erie County officials have received between January 2010 and February 2018. Here are some thought-provoking results:

** County Executive Mark C. Poloncarz’s campaign was the beneficiary of over $2.4 million in contributions over the eight-year period. As a member of the public, my confidence in Mr. Poloncarz’s decision-making is shaken much less by the thought that someone might offer him a Sabres ticket or a ceremonial plaque, than by the fact that he has received $28,000 in contributions from the Clover property management group, $31,000 from Mosey Associates/Mosey Persico LLP, $23,297 from the Lippes Mathias Wexler Friedman law firm, $22,484 from Phillips Lytle LLP, a one-time $5,000 contribution in 2015 from R & P Oak Hill Development LLC, etc., etc.

** County Legislator Joseph C. Lorigo received in excess of $230,000 in campaign contributions between January 2010 and February 2018. The generosity of his campaign contributors – including the $7,000 he received from his father and Erie County Conservative Party chair, Ralph Lorigo – seems much more likely to influence legislator Lorigo’s conduct in office than any nominal gift an organization or individual might toss his way.

** County Legislator BarbaraMiller-Williams’ receipt of $34,330 in political contributions pales in relative size to the funds accepted by other county officials. But, is it unfair to wonder how much influence City of Buffalo Mayor Byron Brown could exert, if he wished, on Ms. Miller-Williams when nearly ten percent (10%) of all contributions she received ($3,224) came from the mayor’s campaign coffers?

Given the stunning contrast between the value of the token gifts offered to our elected officials, and the size and significance of campaign “war chests,” it seems rather frivolous for our county’s lawmakers to prepare, discuss and argue over a detailed list of what should or should not be treated as a “gift” under the new Code of Ethics. Can our lawmakers actually quibble, with a straight face, over promotional hats and t-shirts, publicly-presented sports memorabilia, or invitations to attend personal or family social events, when political contributions of $1,000, $5,000, or even $10,000 are the metaphorical “elephant in the room”? Apparently, they can.

Mind you, I don’t mean to suggest that the topic of political contributions has been totally ignored by our intrepid legislators. Erie County legislators have managed to slip into their latest Code of Ethics proposal a provision meant to shield county officials from any suggestion that political contributions – even if they violate the state’s election law – are to be considered “gifts” intended to influence the performance of an elected official’s duties:

“Proposed Code of Ethics, Section 6(a) … For purposes of this sub-section, the term “gift” shall not include … (viii) contributions reportable under article fourteen of the Election Law, including contributions made in violation of that article of the election law; …”

Please note that I am not suggesting that a municipality’s code of ethics is the appropriate mechanism to address as vexing and complicated an issue as the corrupting impact of political contributions on the integrity of our democratic institutions. On the other hand, I would find it terribly refreshing if one of our elected officials were to decide that a political contribution offered to her or him appears to be an improper attempt to influence her/him in the conduct of her/his office, and files an official report pursuant to Section 11 – “Duty to report” – a provision found in both the current and proposed county code of ethics:

“Section 11. Duty to report.

Every county office or employee shall report to the Erie County Board of Ethics, district attorney and county attorney any action which may reasonably be interpreted as an improper attempt to influence him in the conduct of his office.”

II. The proposed Code of Ethics – exceeding its authority.

The county’s authority to adopt a code of ethics is found in Article 18 of the state’s General Municipal Law [GML], entitled “Conflicts of Interest of Municipal Officers and Employees.” GML Section 806 provides the following instructions:

GML Section 806. Code of ethics.1. (a) The governing body of each county, city, town, village, school district and fire district shall … adopt a code of ethics setting forth for the guidance of its officers and employees the standards of conduct reasonably expected of them… Codes of ethics shall provide standards for officers and employees with respect to disclosure of interest in legislation before the local governing body, holding of investments in conflict with official duties, private employment in conflict with official duties, future employment and such other standards relating to the conduct of officers and employees as may be deemed advisable. Such codes may regulate or prescribe conduct which is not expressly prohibited by this article but may not authorize conduct otherwise prohibited… [Emphasis added.]

In an opinion letter dated February 14, 2018, County Attorney Michael A. Siragusa advised the Erie County Legislature of his conclusion that “there is no evident conflict” between the proposed Code of Ethics and the ethics laws enacted by the NYS legislature. [Here’s the County Attorney’s letter: Code of Ethics 02-14-18 Dept of Law letter.] I respectfully disagree:

The heart of Article 18 of the state’s General Municipal Law is found at GML Section 801, titled “Conflicts of interest prohibited.” That provision – with exceptions found at GML Section 802 – expressly prohibits a municipal officer or employee from having “an interest in any contract with the municipality of which he is an officer or employee” when such officer or employee, individually or as a member of a board, has the power or duty to: “(a) negotiate, prepare, authorize or approve the contract or authorize or approve payment thereunder (b) audit bills or claims under the contract, or (c) appoint an officer or employee who has any of the powers or duties set forth above.”

Amazingly, neither Erie County’s current Code of Ethics, nor the proposal now under consideration, includes this ban against a county officer or employee having an “interest” – defined as “a direct or indirect pecuniary or material benefit accruing to a covered individual or his relative” – in a contract with Erie County. Rather than prohibiting the proscribed “conflicts of interest,” county lawmakers (as set forth at Section 5, “Disclosure of interest in county business”) merely require a county officer or employee with an interest in an actual or proposed contract with the county to: (i) “publicly disclose the nature and extent of the interest in writing”; (ii) “consider divesting himself of the interest, if he can do so without undue hardship” (with the conflicted officer or employee’s conclusion in that regard being “conclusive”); and, (iii) “If he does not divest himself of that interest, he must abstain from participation in such action.”

By allowing elected officials and other county officers and employees to decide whether they wish to divest themselves of an interest in a county contract, rather than prohibiting the conflict, the current and proposed codes violate GML Section 806 by, in effect, “authoriz[ing] conduct otherwise prohibited” by GML Article 18. I suggest that our county lawmakers, as well as the County Attorney, go back to the statute that authorizes (and, mandates) a code of ethics, and slowly and carefully read the “Conflicts of interest prohibited” provisions.

B. Failure to include GML Article 18’s “Contracts void” provision.

Reflecting the significance of its prohibition against conflicts of interest, GML Article 18 makes contracts intentionally entered into despite a prohibited conflict of interest “null, void and wholly unenforceable”:

“GML Section 804. Contracts void.

Any contract willfully entered into by or with a municipality in which there is an interest prohibited by this article shall be null, void and wholly unenforceable.”

It appears that Erie County’s lawmakers have willfully excluded this fundamental provision from the county’s Code of Ethics, and, in doing so, have authorized contracts prohibited under GML Article 18.

C. Requiring financial disclosure by candidates for elected offices.

The language is less than clear, but the current and proposed code of ethics compel candidates for elected office to file extensive financial disclosure statements. While it may be beneficial to voters (and, to incumbents facing a challenger) for candidates to publicly disclose their financial information prior to election day (after all, many Americans wanted presidential candidate Donald Trump to make his tax returns public), the issue for county lawmakers is whether they possess the authority to require candidates for elected office in Erie County, as part of the county’s ethics code, to file financial disclosure statements.

I have no knowledge of any court decisions addressing this legal issue. In my opinion, the answer is pretty clear: GML Article 18, at Section 811, only authorizes a municipality – such as the County of Erie – to require the filing of financial disclosure statements from two categories of individuals: municipal officers, employees, and elected officials, on one hand, and local political party officials, on the other. There is no authority – at least in GML Article 18 – to compel such disclosure by candidates for elected office.

III. The proposed Code of Ethics – exclusion of unpaid officials.

GML Article 18’s definition of “municipal officer or employee” is appropriately broad, and includes an officer or employee “whether paid or unpaid,” as well as “members of any administrative board, commission or other agency” of the municipality. In doing do, it ensures that conflict-of-interest and disclosure provisions apply to individuals who serve without compensation on administrative and policy-making boards – individuals who often are well-connected politicos, influential business women and men, and/or campaign contributors.

Additionally, the state’s conflict-of-interest law expressly includes members, officers and employees of a municipality’s “industrial development agency” as a “local officer or employee” required to file an annual financial disclosure statement.

County lawmakers have chosen to limit the term “employee” to a person “who receives a salary or wage” from Erie County. They also have not mentioned in their definition of “officer or employee” whether the term applies to the members, officers and employees of the Erie County Industrial Development Agency [ECIDA].

While members of the ECIDA board of directors are not compensated, they possess the power to dole out millions of dollars in tax abatements and other forms of “corporate welfare” to Erie County businesses and organizations. As legislator Lorigo expressed in a press release when he was appointed to the ECIDA board: “The ECIDA can have a significant impact on our community, providing valuable incentive programs that will make Western New York stronger for the long-term.” [Note: Mr. Lorigo is no longer on the ECIDA board.] Given the policy-making powers of the ECIDA, the updated Code of Ethics must make it clear that the code’s financial disclosure provisions apply to the ECIDA members and staff.

Clarification is also needed on the status of members of the county’s Board of Ethics. As with ECIDA members, appointees to the Erie County Board of Ethics are uncompensated, but possess significant discretionary powers. The public has the right to know as much as possible about the financial, family, political, and business connections of individuals entrusted with the authority to pursue – or not – county officers and employees accused of violating the code of ethics.

IV. The proposed Code of Ethics – making Board of Ethics even more political?

The current Code of Ethics calls for a six-member Board of Ethics. Each member is appointed by the county executive subject to confirmation by the county legislature, and all six members possess full voting powers.

In contrast, the current proposal would increase the size of the board to eight members, five of whom would be full voting members appointed by the county executive subject to confirmation by the county legislature, and three of whom would be non-voting “ex-officio members.” One ex-officio member would be appointed by the Chair of the Erie County Legislature (currently, Peter J. Savage, III), one by the Legislature’s Majority Leader (currently, April N.M. Baskin), and one by the Legislature’s Minority Leader (currently, Joseph C. Lorigo).

I can’t help but question the wisdom of this change. Given the sensitive and confidential nature of Board of Ethics proceedings, what constructive role would non-voting members play? How would the investigation of alleged ethical violations be enhanced by the presence of individuals who would almost certainly act as his or her appointee’s “eyes and ears”?

Conclusion

Our elected officials and their advisors must invest as least as much time and energy to ensure compliance with the letter and spirit of Article 18 of New York’s General Municipal Law – the source of their authority to adopt and amend a code of ethics – as they have drafting and quibbling over what is or isn’t an acceptable gift. If they do, the public might actually regain some confidence in government.

The August 7, 2017 print version of the Buffalo Law Journal published my column – titled “Poor planning produces predictable parking problems” – in which I opine regarding the ways the Buffalo Niagara Medical Campus [BNMC] board of directors, the City of Buffalo, and New York State have failed the Allentown and Fruit Belt neighborhoods by not effectively addressing beforehand foreseeable parking headaches resulting from the growth of the medical campus.

Note: After reading the BLJ column, you might agree with the conclusion that I have reached: Given his role as both the Mayor of the City of Buffalo and member of the Board of Directors of the Buffalo Niagara Medical Campus, Inc., the following statement by Byron Brown rings awfully hollow:“I made Fruit Belt parking my top legislative priority.”

For years, the Buffalo News editorial staff (as with its reporters) has blindly touted Mayor Byron Brown’s proposed Green Code as Buffalo’s salvation. Now that the City’s legislators, the nine-member Common Council, are ready to approve Buffalo’s new zoning and development ordinance, Western New York’s largest daily newspaper is all upset. An opinion piece published on September 19, 2016 – under the heading, “Smart growth needed” – expresses disappointment that “overly restrictive zoning regulations stand in the way of growth the city needs.” The source of the Buffalo News frustration? A decision to restrict the height of new buildings on Elmwood Avenue to three stories. Developers – such as Ciminelli Real Estate Corp. and Chason Affinity – are whining, and the Buffalo News is more than willing to lobby on their behalf. Let me give you three reasons why the opinion expressed in the editorial is so dumb.

First, although the Buffalo News editorial concedes that the “Elmwood Village already has a certain amount of density,” it insists that, “Residents living in the Elmwood Village should be encouraging density, not discouraging it.” The editorial staff ignores the unassailable fact that the Elmwood Village is already a vital and attractive neighborhood, and that the primary reason for its lure is its livable scale, the balance between historic residential structures and small-scale businesses.

Second, the Dec. 19th opinion piece speaks the truth when it says that the Elmwood Village “has the kind of reputation that struggling neighborhoods envy.” It is also true that many of Buffalo’s neighborhoods would benefit from “denser development that will contribute to growth.” But the Elmwood Village is not one of those neighborhoods. The beneficiaries of denser development on Elmwood Avenue would not be current Elmwood Village residents, but, to the contrary, the only constituency that seems to count at the Buffalo News: developers.

Third, the Buffalo News editorial staff acknowledges that a developer who wishes to construct a building taller than three stories will have the right, under State law and the Green Code, to seek a “variance” from the City’s Zoning Board of Appeals and attempt to prove that the benefits of the proposed project outweigh the detrimental impacts. But they’re upset that such developers “will have to spend more time and money and undergo public scrutiny.” Imagine that, a developer who insists that its project is a benefit to a neighborhood will have to prove that fact in a public forum. Like it or not, Ciminelli, Chason Affinity, and the Buffalo News, such an approach not only sounds like democracy to me, it is also the only way to protect and preserve a community with the historic character and uniqueness of the Elmwood Village.

The State’s Historic Preservation Office has submitted a letter – also dated December 19, 2016 – to the City of Buffalo explaining the detrimental impacts one of the controversial proposals – Chason Affinity’s plans to demolish a dozen structures and build an utterly inappropriate 5-story, 166,000-square-foot monstrosity at the southeast corner of Elmwood and Forest avenues – would have on the Elmwood Village’s historic fabric. I strongly urge Buffalonians and our elected officials to read it: shpo-12-19-2016-letter.

Back in 2008, when plans for a so-called “signature” span were prudently scuttled, Western New York’s largest newspaper demanded “an iconic bridge”, and impudently proclaimed, “We are One Buffalo. We do not have to settle for second-rate.”

Three years later, when the Peace Bridge Authority announced that neither a new bridge, nor a “grand plaza” on the U.S. side, would be happening, a truculent editorial asked supporters of a dramatic new span “to remain on duty” and to continue the quest for “the ultimate goal” – delivery of a new bridge.

Without missing a beat, the Buffalo NewsOctober 16th editorial elevates Annunziata’s words to near-mythic proportions, proclaiming that the Canadian chairman’s utterance has brought “the idea of a companion span to the Peace Bridge explod[ing] into public consciousness again.” Such hyperbole (rather than informed reflection) can be expected from an insufferable new-bridge-addict. But a more realistic response is the one expressed by New York State Assemblyman Sean M. Ryan, D-Buffalo. As reported in an October 10, 2015 article in the Buffalo News, Ryan characterized Annunziata’s suggestion as “careless,” suggested that the removal of the threat of eminent domain and construction of a new bridge has helped bring a measure of stability to the adjoining West Side neighborhood, and opined: “Clearly, Chairman Annunziata has gone rogue.”

In contrast to the reality-check provided by Assemblyman Ryan, the BN editorial team instinctively asserts – without any objective support – the potential for “huge” benefits for Western New York if a companion span is built. Readers are assured that Buffalo and Western New York will “thrive” when delays at the Peace Bridge are reduced and Canadians overcome their “avoidance behavior” and once again flock to the U.S. to shop and entertain themselves.

The Buffalo News isn’t about to let hard facts moderate it’s proselytizing. While “new bridge” proponents previously justified calls for a new bridge by pointing to statistics reflecting an increasing number of vehicles utilizing the international crossing, the opposite is true today. As acknowledged in the October 16th opinion piece, vehicular traffic at the Peace Bridge is down significantly. Traffic numbers available at the bridge’s website show that automobile trips between Buffalo and Fort Erie have declined nearly 37% between 2003 and 2014.

From the BN’s perspective, however, reduced traffic at the Peace Bridge is now a reason to construct a second span. If you build a companion bridge, the argument goes, our Canadian neighbors will be freed from their debilitating fear of long lines and delays, and once again have the strength and confidence to regularly visit Western New York’s stores, eateries, and entertainment venues.

This simplistic scenario not only underestimates the intelligence and psychological resilience of Canadians, it disregards the statement in the October 10, 2015 article that average wait times in 2015 for Canada-bound autos crossing the Peace Bridge is a mere 2.3 minutes [that’s 138 seconds], and 5.1 minutes for U.S.-bound autos [that’s 306 seconds]. Such delays can hardly explain the “avoidance” phenomenon heralded by Chairman Annunziata and the BN editorial team, and do not begin to justify the expense, disruption, and environmental costs of constructing and operating a new bridge.

Even if we assumed for the sake of argument that the scenario envisioned by the Buffalo News and other supporters of a new bridge somehow matches reality, there exists no basis in law to treat the international crossing as it is viewed by the author(s) of BN’s editorial – nothing more than another cog in Western New York’s economic development engine to be stimulated and subsidized by state and federal money.

In light of the restrictions contained in the international compact, dreams of a companion for the old Peace Bridge – whether iconic, twin, or merely functional – should be put on hold unless and until traffic levels are sufficient to generate the funds needed to fill a “capital improvement” piggy bank. And, even then, any proposal to build a new bridge will have to be preceded by an environmental review that performs two critical functions: a thorough and objective assessment of potential adverse impacts of such a span on human health, the character of the surrounding neighborhood, traffic patterns, noise, migrating birds, etc.; and, a detailed evaluation of all reasonable alternatives (including the removal of all truck traffic from the international crossing between Buffalo and Fort Erie).

** It’s bad enough that we have unaccountable agencies and boards with the power to disburse millions of dollars in corporate welfare. It is even more problematic for our legal and governmental systems when elected officials appoint to these entities political cronies with histories of poor judgment and ethical lapses. **

It came as a bit of a shock to read the front page article in the October 12, 2015 Buffalo News by political reporter Robert J. McCarthy. Beneath the headline, “Maziarz cleared background check amid investigation – Sources say federal prosecutor is backing off former state senator,” McCarthy reports that the state senate confirmed the appointment last January of former state senator George D. Maziarz “to an obscure hydropower panel” – the New York State Economic Development Power Allocation Board (EDPAB). That action was preceded, according to the article, by “the required State Police background check.”

The newsworthy aspect of the October 12, 2015 story escapes me. The Maziarz appointment was announced ten months ago during the agency’s December 15, 2014 board meeting. At best, the Buffalo News article leaves a reader uncertain whether the former senator’s appointment to the state panel has had any impact on an investigation begun last year by U.S. Attorney Preet Bharara into then-senator’s use of campaign funds. At worst, the headline and front-page report seems to imply that the former senator’s “successful background check” has removed him from legal scrutiny.

Regardless of its purpose, the October 12th article motivated me to investigate the current makeup of EDPAB, and led me to the discovery that Sam Hoyt – who serves as President of Empire State Development’s Western Region, and vice-chair of the Peace Bridge Authority – is also chairman of EDPAB. Further digging also led to uncovering the following: In 2012, NY’s legislature created an even more-obscure hydropower panel, the Western New York Power Proceeds Allocation Board.

The announcement last year that George Maziarz would retire as of December 31, 2014 did not sadden me. In fact, I have made it clear ever since I observed his behavior in 2010-2011 – regarding the proposed Verizon Wireless data center in the Niagara County Town of Somerset – that I do not have a very high opinion of the former state senator [and, I’m pretty certain that the feeling is mutual]. For example:

– The former senator’s banal cheerleading and failure to critically assess the telecommunication giant’s project and intentions, as well as his unflinching support for an estimated $626 million package of “financial aid” for Verizon from NYPA and the Niagara County IDA in exchange for – at best – 200 jobs, reflected poor and misguided judgment.

– His refusal to ask whether a better location in more urban portions of Niagara County (such as abandoned brownfield sites), coupled with his receipt of sizeable campaign contributions in 2008–2010 from the owner of the Somerset parcel, and in 2010 from Verizon, raised questions concerning the manner in which his official actions were impacted by political contributions.

– Public vilification by Mr. Maziarz of my client, a 75-year-old widow who owned farmland across the road from the proposed site, for asserting her rights under New York’s zoning and environmental review laws, demonstrated both a mean-spiritedness and a misunderstanding and disdain for the rights of average citizens and property owners. His false and public accusation – archived in a March 21, 2011 video clip for “The New York State Legislative Report” – that I had sought out my client and used her as a “pawn” in furtherance of an unidentified party’s interests, shows a reckless and dangerous disregard of the truth unacceptable in a public servant. [In fact, when my client’s daughter contacted me in a panic two days prior to a public hearing before the Somerset town board, and asked me if I could attend the hearing on her mother’s behalf, I embarrassingly told her that I had no idea where the Town of Somerset was located.]

So the thought of Hoyt and Maziarz comprising two of four members of the EDPAB board is downright disconcerting. In theory, the power allocation board’s primary role is to serve as a “watchdog” on behalf of the public, ensuring that the New York Power Authority (NYPA) uses its financial clout within the requirements and criteria prescribed by law. Sadly, that “dog” has refused to bare its teeth, much less bite.

More specifically, it is my opinion that EDPAB exhibited a willingness in 2010 to disregard both the law and ethics when it rubberstamped a request for $105 million to fund development at Buffalo’s Canalside. What follows is a detailed summary of what occurred in February 2010 – taken from an unanswered email that I sent in September 2010 to then-editor of the Buffalo News, Margaret M. Sullivan:

In need of additional funding for the Canal Side project, the project sponsors, Empire State Development Corporation [ESDC] and its local subsidiary, ECHDC, asked NYPA to provide an “Industrial Incentive Award” [IIA] of $3.7 million per year for 20 years to help finance the project. There were two basic problems with ESDC/ECHDC’s request. Pursuant to NYPA’s annual Economic Development Plan, IIAs were only available to industrial companies in NYS “at identifiable risk of closure or relocation to another state.” The Canal Side project, and its long-pursued “destination retailer,” Bass Pro, obviously did not fit that criteria. Additionally, NYPA’s annual Economic Development Plans had never included a 20-year funding proposal. Despite these defects, NYPA asked its oversight agency, EDPAB, to approve the proposed funding package for the Canal Side project.

On February 2, 2010, EDPAB held a special meeting, by video conference, for the sole purpose of considering NYPA’s funding proposal for the Canal Side project. The EDPAB Chairman, Kenneth Schoetz, participated in the video conference from the 95 Perry Street office suite of ECHDC and his employer, ESDC, the agency that had requested the Industrial Incentive Award for the waterfront project. Mr. Schoetz, who had previously served as ESDC’s Acting Upstate Chairman, held the position of ESDC’s “Senior Vice President of Regional Offices” on February 2, 2010. Despite the fact that the proposal under consideration represented a radical departure from prior EDPAB policies, requiring EDPAB to revise the then-current Economic Development Plan to extend it from 2016 to 2029, and to add a new “permissible use” to the list of uses of Industrial Incentive Awards, Chairman Schoetz chose not to recuse himself from participating in the discussion and voting on the proposal. In fact, he provided the third and decisive vote required by statute to approve the resolution.

Plaintiffs in Goldman, et al. v. Bass Pro Outdoor World, L.L.C., et al. (NYS Supreme Court, Erie Co., Index No. 7723/2010), contend that Mr. Schoetz’s dual role, as EDPAB Chairman and ESDC’s Senior Vice President, created a disqualifying conflict of interest, or, at a minimum, the appearance of impropriety. Responding to that claim, Mr. Schoetz has provided a sworn affidavit to the Court in which he denies any impropriety and states:

There is no conflict of interest nor even the appearance of impropriety here. It is common for public bodies with similar missions to have cross involvement… The purpose of having an ESD employee serve on EDPAB is to promote cooperation and consistency in economic development decisions. [Emphasis added.]

The so-called “cross involvement” touted by then-Chairman Schoetz, and the “cooperation and consistency” that he says it promotes, help to explain the often narrow, myopic perspective of agencies such as NYPA and Empire State Development (and its subsidiaries, such as Erie Canal Harbor Development Corporation). Such inbreeding also helps to accelerate the public’s loss of confidence in the integrity and wisdom of the economic development process.

Given their past history, Sam Hoyt and George Maziarz are not likely to make decisions in their capacity as EDPAB board members that will help restore the public’s faith in government decision-makers – unless, perhaps, U.S. Attorney Preet Bharara is available to babysit.

** Given the DNA and prior history of the Erie Canal Harbor Development Commission, and the secrecy and duplicity that have tainted the Buffalo Green Code process, Western New Yorkers who desire a waterfront where open space, parks and nature’s beauty prevail must be ever vigilant and skeptical. **

In what is hopefully a genuine reversal in position, the recent Buffalo News opinion piece recognizes “a need for caution” when considering the latest plans for Canalside – which include not only a children’s museum, historic carousel, shops and restaurants, but also office space and residences. Fear of an incremental loss of open space at Canalside appears to have been fueled by comments made by Sam Hoyt (ECHDC board member and ally of Gov. Andrew Cuomo) that Canalside has “some of the most valuable, developable property” in upstate New York, and by Brendan R. Mehaffy (head of Mayor Byron Brown’s Office of Strategic Planning) that “Canalside is nowhere near its potential.”

In response, the publication’s editorial team acknowledges that “part of the attraction of Canalside is its expanse of urban green space, hard against the lake,” and reminds the problematic Mr. Hoyt, that the use of real estate highly coveted by developers, such as Canalside, as a park may well be “its higher purpose.”

While these statements by the Buffalo News are a welcome change in attitude, skepticism and extreme vigilance, not mere caution, are required when assessing the short-term and long-term plans recently made public for both the Inner Harbor’s Canalside district and the Outer Harbor. If there is to be a realistic chance of avoiding an ever-increasing encroachment by commercial development, proponents of a Buffalo waterfront where open space and parkland are the first priority must recognize the true nature of such a threat as reflected in the following facts:

First, the ECHDC’s heritage and genetic makeup is pro-development, not pro-parkland. Searching for ways to turn real property and natural resources into private development and profits is an inclination and preference that runs deep in its bones. As expressed in its “Erie Canal Harbor” brochure, ECHDC is a subsidiary of Empire State Development, “the states chief economic development agency.”

Second, from its earliest days, as demonstrated in a 2007 “Pre-Development Agreement” crafted by ECHDC leaders and representatives of the Benderson development companies, an extremely cozy relationship has existed between leaders of the harbor development corporation and their anointed developers. For example, the Bass Pro-era pre-development agreement envisioned Benderson developing the Donovan block, Webster block, Aud block, and “certain Historic Block Improvements.” ECHDC was to fund the entire cost for three parking ramps to service the Benderson improvements, and “acquire title to all parcels required for the Benderson Improvements.” Once acquired, ECHDC was to “deed such parcels to Benderson, for ten dollars.” [Yes, ten bucks!]

[Note: A detailed description of the legal claims and factual background asserted in a 2010 lawsuit that I brought on behalf of six Buffalonians – to challenge the use of public friends to lure Bass Pro to the Buffalo waterfront – entitled Goldman, et al. v. Bass Pro Outdoor World, L.L.C., et al., NYS Supreme Court, Erie Co., Index No. 7723/2010, is set forth in the Verified Petition/Complaint.]

Fourth, despite its well-publicized embrace of a “lighter, quicker, cheaper” approach to Canalside development, the leadership of ECHDC did not hesitate to support construction of the massive HarborCenter project at the edge of Canalside. The publicly-subsidized development, with its towering 205-room hotel, 850-space parking ramp, pair of NHL-sized hockey rinks, bars and restaurants, was approved by ECHDC without first requiring preparation of an environmental impact statement. Had the mandates of the State Environmental Quality Review Act (SEQRA) been followed, an EIS would have provided an opportunity to objectively explore alternatives and mitigation measures – and simultaneously provide the public with a mechanism for direct input – with the goal of limiting adverse impacts on Canalside’s pre-existing L-Q-C activities.

Sixth, far away from the public’s eye, ECHDC and city officials have incorporated Outer Harbor development into the Buffalo Green Code planning process. Despite claims of transparency, the ECHDC’s updated “blueprint” is the product of behind-closed-doors negotiations during an eleven-month period when the public was excluded from any direct involvement in the planning process. Nonetheless, the ECHDC leadership seeks to legitimize its vision by referencing the “transparent City Green Code process.”

In the very near future, we will all have an opportunity to exercise vigilance concerning future plans for Canalside and the Outer Harbor. Mayor Brown’s Office of Strategic Planning now says that it will deliver the final version of the proposed Buffalo Green Code to members of the City’s Common Council (the ultimate decision-makers) on or about October 22nd.

With careful scrutiny, we will hopefully uncover what the powers-that-be propose for Buffalo’s waterfront. In reviewing what will be a massive document, we must pay close attention to the types of commercial and non-parkland activities the ECHDC and Mayor Brown envision for so-called “open space” areas and adjoining parcels. And, we must be especially suspicious of any discretionary authority the ECHDC and/or Office of Strategic Planning retain for unspecified future development.

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